Feds: VT OSHA Bungling Death Probes

Are workers in states that run their own occupational safety and health programs getting the same protection as those in states overseen by federal regulators?

A new federal audit—the latest to criticize a state program—suggests not.

Humphrey Farrington McClain

Some fatal accident files were closed without documenting that violations had been corrected, OSHA said. Some fatal cases did not result in any citations.

A scathing new report by the federal Occupational Safety and Health Administration accuses the Vermont OSHA (VOSHA) program of "severe deficiencies" in fatal accidents, falling far short of inspection goals, leaving problems uncorrected, failure to investigate claims by whistleblowers, misclassifying violations, and a variety of other serious lapses.

Several serious problems date back three years, federal OSHA said. The Vermont program began in 2005.

Continuing Problems

Federal OSHA's FY2011 Enhanced Federal Annual Monitoring Evaluation (EFAME) of the Vermont program repeats a list of violations that were noted in the state's FY2010 and FY2009 evaluations.

The recurring deficiencies include failure to notify next of kin in a timely fashion after a fatal accident; lack of training by personnel and supervisors; improper assessment of the severity of violations; and closing cases without having documented abatement of violations.

Richard Gwin / LJWorld

Recurring deficiencies included lack of training for supervisors and inspectors, misclassifying violations, and improperly assessing the severity of violations.

In FY2010, federal OSHA noted 11 areas with deficiencies, including mishandling of death investigations.

A year later, however, only one of those 11 areas had been addressed. "For example," the new report said, "issues persist with respect to violation classification and gravity assessments; inadequate documentation of abatement; evidence to support violations cited as serious; and sending letters to fatality victims’ next of kin."

Not only that, federal OSHA notes, but the state showed several new problems in FY2011.

Fatal Accidents Mishandled

The two "major new issues" cited in FY2011 are significant mishandling of fatal accidents and whistleblower complaints.

The report found "severe deficiencies with respect to fatality investigations, such as failure to follow fundamental fatality investigative procedures outlined in OSHA’s Field Operations Manual (FOM), and failure to thoroughly document fatality incidents."

OSHA

Cited for a third year for not completing required training, Vermont inspectors told federal OSHA that the training was a "waste of time."

The program’s "most significant deficiencies are due to managers’ and [Compliance Safety and Health Officers'] inattention or failure to understand basic inspection and investigatory techniques," the report said.

For example, in one fatal case, the inspector:

"Did not identify and interview all persons with firsthand knowledge of the incident";

"Did not thoroughly document how and why the incident occurred, describe or sketch the physical layout of the scene, or take measurements, etc.";

"Overlooked violations that were documented by photos of the accident scene that were contained in the case file"; and

"Did not issue citations based on these violations."

In another fatal case, "VOSHA did not follow basic investigatory techniques as outlined in the [Field Operations Manual] and did not consider issuing citations."

In a third fatal case, VOSHA "was months overdue in sending a next-of-kin letter to a victim whose family resides in Mexico, on the grounds that VOSHA had been unable to translate the letter into Spanish," the report said.

Other "serious concerns" include inadequate "training and supervision" of program supervisors.

Whistleblower Weaknesses

Regarding whistleblowers, federal OSHA found that VOSHA's program again fell short of federal standards and failed to implement "important recommendations" federal OSHA had made earlier.

OSHA

"No training or experience" by supervisors was a problem in Vermont's whistleblower program.

"While the review identified some areas where VOSHA has made improvements since the last review in 2009, many more areas were identified where the program is deficient and must be improved," the report said.

Among the "serious problems" cited: VOSHA investigators made “no distinction ... between established fact and uncorroborated assertion,” and they tended to “reach conclusions without examining each element of the prima facie case,” federal OSHA said.

Other problems the feds cited in the state whistleblower program included:

Disorganized files;

Letters not sent to the appropriate parties;

Lack of an established appeals process;

Lack of sufficient case logs;

Lack of evidence for decisions in field inspection reports;

"No training or experience" by those supervising the program;

Failure to notify complainants of their right; and

Lack of website information about the program.

Other Problems

The federal evaluation also found that the Vermont agency:

Improperly assessed fines;

Did not conduct field sampling or interviews, even when interviews "would likely have provided valuable factual information concerning hazardous conditions";

Conducted only 317 inspections in one year for nearly 300,000 covered employees, falling short of the agency's goal of 400 inspections;

Had a record of erring on the side of understating the probability and severity of violations "than warranted by the nature of the violation(s) cited";

Misclassified violations, including classifying serious violations as "other than serious";

Showed case files missing field notes;

Did not follow OSHA's Filed Operations Manual; and

Still had not completed training of inspectors who had been cited two years earlier for not being trained (Vermont inspectors told the federal agency that the training was a "waste of time").

Increased Oversight

Federal OSHA said it would "intensify its quarterly monitoring" of the Vermont program "in light of these serious deficiencies." The federal agency said it would conduct random reviews of case files and would review all fatality case files before they are closed.

Half of U.S. states as well as the Virgin Islands run their own OSHA programs, although some of the programs cover only public employees. Federal OSHA is required to evaluate each of these programs annually.